Precedential No. 24: Finding Pepper Sauce and Agave Sweetener Related, TTAB Affirms 2(d) Refual of "CHANTICO & Design"

The Board affirmed a Section 2(d) refusal to register the mark shown immediately below, for "condiment, namely, pepper sauce" [PEPPER SAUCE disclaimed], in view of the registered mark CHANTICO for "agave sweetener." It found the marks to be confusingly similar, the involved goods to be complementary and purchased with only ordinary care, and the channels of distribution similar. In re Gina Davia, 110 USPQ2d 1810 (TTAB 2014) [precedential].

The marks: Not surprisingly, the Board deemed the dominant portion of applicant's mark to be the word CHANTICO. Applicant Davia contended that the serpent design is the most visually prominent and conspicuous feature of her mark, but the Board saw the snake design as creating a visual focus to the word. Moreover, the design is so stylized that it will not be immediately recognized as a serpent. [When I noticed it, I thought it was the head of a flying monkey from the Wizard of Oz - ed.]. Consumers will more readily recall the word portion of the mark, and that is what they will use to call for the goods.

Because the cited mark is in standard character form, the Board must consider the registered mark as if used in the same style or font as that used in applicant's mark. The meaning of the word CHANTICO is the same for both marks: the name of an Aztec goddess. Those unfamiliar with that meaning will see the marks as the same arbitrary term.

The mark CHANTICO is conceptually arbitrary and strong as applied to the involved goods. and there was no evidence of third party usage of the same or similar marks that might indicate that the cited mark is commercially weak.

The goods: The Board found the goods to be "functionally related:" pepper sauce and agave sweetener are commonly used together, and such conjoint use is relevant to the likelihood of confusion issue. Examining Attorney Marcie R. Frum Milone submitted web pages showing that the two products are often called for in the same recipes. Of course, there is no per se rule that all food products appearing in the same recipe are related for Section 2(d) purposes.

If two ingredients, however, are found to be complementary in that they are sold in the same stores to the same consumers for the same, related or complementary end use, consumers are likely to be confused upon encountering the goods under the same or similar marks even though the goods may be found in different areas within a store.

Here, the evidence showed that pepper sauce and agave sweetener are often blended together to provide a combination of sweet and hot flavors. The evidence also showed that consumers are likely to encounter one product while purchasing the other. Because the products appear in the same recipes, consumers are likely to purchase them at the same time and in the same store.

In sum, the Board found the goods to be related in the mind of the consumer.

Channels of Trade and Purchaser Care: There were no restrictions on channels of trade for the goods in the involved application and cited registration, and so the Board presumed that the goods travel in all ordinary channels of trade to all relevant classes of consumers. The evidence was inconclusive as to the ordinary channels of trade, however, but it did show that consumers may purchase both products through, at least, online grocery stores, and may use both in a single recipe. Thus the classes of customers are the same.

Both pepper sauce and agave sweetener are relatively inexpensive products that would likely be purchased "without much care" by the general public. Applicant argued that her customers are discriminating and brand loyal, but there was no evidence to support that assertion. In any case, the determination of likelihood of confusion must be made with the least sophisticated potential purchaser in mind. [God help us! - ed.]

Balancing the relevant duPont factors, the Board found confusion likely and it affirmed the refusal.

Read comments and post your comment here.

TTABlog note:  Never mix, never worry, I always say, if you want to avoid confusion.

Text Copyright John L. Welch 2014.